The Legal Status of the Tridentine Mass

Some Further Thoughts

Michael Davies

IN MY PAMPHLET The Legal Status of the Tridentine Mass, I cited the opinion of competent canonists to the effect that no legal obstacle exists to prevent any priest of the Roman Rite celebrating the Tridentine Mass or any of the faithful from being present.¹ Since the publication of the pamphlet I have received letters from other canonists expressing their agreement with its conclusions. I will summarize these conclusions briefly:

1) The Tridentine Mass has never been formally abrogated, i.e., abolished completely. Formal abrogation necessitates a clear and specific statement by the competent authority, in this case the Pope. The only relevant papal document is the Apostolic Constitution Missale Romanum dated 3 April 1969. Those who claim that the Tridentine Mass has been legally prohibited often quote the final paragraph of this Constitution, which reads: "We wish that these our decrees and prescriptions may be firm and effective now and in the future, notwithstanding, to the extent necessary, the apostolic constitutions and ordinances received by Our Predecessors, and other prescriptions even those deserving particular mention and derogation."

These words refer to the decrees and ordinances included in Missale Romanum, and there is not one word in that apostolic constitution prohibiting the use of the Tridentine Mass. What the constitution does is to legalize the use of the Novus Ordo Missae, the New Order of Mass.

2) A stronger argument in favor of the illegality of the Tridentine Mass is that of obrogation. A law is obrogated when it is replaced by new legislation by which it is automatically superseded. It is thus argued that the Novus Ordo and its accompanying legislation automatically replaced the Missal promulgated by St. Pius V in 1570, and its accompanying legislation, i.e., the Bull Quo Primum. However, if this argument is correct the right to use the Tridentine Mass still exists from immemorial custom. The rite of Mass found in the Missal of St. Pius V was not composed by him; in all essentials it dates back to the epoch of St. Gregory the Great, and even beyond. It had thus acquired the status of what is known as immemorial custom. To the right to celebrate this Mass derived from immemorial custom was added a formal legal right specified in the Bull Quo Primum. Where an immemorial custom becomes regulated by written law, the right derived from customary law still stands if the written law should lapse, either through abrogation or obrogation. This right from customary law continues to exist until it is formally and clearly abrogated by specific mention. This has never happened in the case of the Tridentine Mass.

3) There is a third method of changing a law, that is by derogation. This means that the legislation still remains in force, but in a modified manner. A Notification of the Sacred Congregation for Divine Worship, dated 14 June 1971, restricted use of the Tridentine Mass to priests of advanced age or those experiencing "grave difficulty in the use of the new Ordo." Such priests, it was stated, must celebrate the Tridentine Mass only in private (sine populo). But by no possible stretch of the imagination could such a notification be considered adequate to deprive priests of the Roman Rite of the right to celebrate the Tridentine Mass which they possessed from immemorial custom. The same can be said of the so-called "English Indult," permitting the use of the Tridentine Mass in England and Wales at the discretion of the bishops. This indult accords to priests a right which they already possessed, or, to be more accurate, it restricts a right which they already possessed, i.e., acceptance of the terms of the indult involves a restriction on their free use of the Missal of St. Pius V.²

A Problem for the Vatican

There can be no doubt that the Vatican had been surprised at the extent of the attachment to the Tridentine Mass among traditional Catholics, and of their determination to remain faithful to it no matter what the cost. It is probable that Pope Paul VI did not take the step of formal abrogation as he had not envisaged such widespread fidelity to the traditional rite. Such fidelity is by no means without precedent. Pope St. Victor accepted the advice of St. Irenaeus to retract an excommunication imposed upon eastern Christians who refused his command to reckon the date of Easter according to the Roman method. The people of Milan resisted the attempts of several popes to force them to abandon the Ambrosian Rite and accept that of Rome, even taking up arms in defense of their tradition.

I have been sent copies of a good many letters from bishops to those who have written them on the subject of the Tridentine Mass. The bishops often point out that the pope has the power to make liturgical changes, and that all the changes made by Pope Paul VI come within his legal competence. This, they appear to think, settles the matter—but it doesn't. A pope is meant to use his awesome powers as a shepherd, not as a tyrant. He is under the same obligation as any legislator not to impose laws which his subjects will find too difficult or distressing to obey. Indeed, it appears self-evident that popes should set an example to other legislators in this respect. There is a sound tradition among Catholic theologians and canonists that subjects have a right to resist unjust or too burdensome legislation, even though the legislator has not exceeded the strict limits of his authority in imposing it.³

The problem faced by the Vatican as a result of the widespread support for the Tridentine Mass was that it had condoned its almost universal suppression without giving formal and binding legal sanction to this suppression; and, furthermore, this illegal suppression had been given support in documents emanating from the Sacred Congregation for Divine Worship. There is no doubt at all that Pope John Paul II is sympathetic to those who, while recognizing his authority, wish to utilize the Tridentine Mass. Pope Paul VI was much less sympathetic, due, no doubt, to the fact that he considered his personal credibility to be bound up closely with the alleged success of the reform. The unhappy pontiff maintained right up to his death that the post-conciliar liturgical reform had been a pastoral triumph, bringing immense spiritual benefits to the faithful—though marred here and there by a few unauthorized excesses.

Pope John Paul II's more tolerant attitude to traditional Catholics is almost certainly prompted by pastoral rather than doctrinal considerations. Anyone who has studied the corpus of his pronouncements on the Mass and the Blessed Sacrament must certainly accept that his Eucharistic belief is identical to that of Archbishop Lefebvre. But there can be little doubt that the Pope considers that Catholic Eucharistic doctrines are given adequate liturgical expression in the new rite, which is where Archbishop Lefebvre would disagree with him. The Pope would thus like to see the Tridentine Mass celebrated freely, or at least more freely, not because he believes the new rite of Mass to be doctrinally impoverished but because he feels pastoral concern for those attached to the old rite. Like so many orthodox priests, he interprets the new rite in the light of his traditional beliefs; but, unhappily, priests who are not orthodox interpret it in the light of their heterodox outlook.

Frustrated Initiatives

Within months of the accession of Pope John Paul II to the papal throne, rumors began circulating among traditional Catholics of an impending document which would, at least, enable much freer use to be made of the Tridentine Mass. These rumors definitely had a factual basis. Cardinal Seper, Prefect of the Sacred Congregation for the Doctrine of the Faith, made the existence of such a document known to Archbishop Lefebvre several times during their discussions. In a letter to the Cardinal dated 23 June 1979 the Archbishop remarked: "Your Eminence, so happy am I at the thought that the Holy Father is preparing to issue this decree that I should not be able to thank him enough, and to thank God and the Virgin Mary for inspiring him to take this salutary step" (Apologia Pro Marcel Lefebvre, Vol. II, p. 308).

Unfortunately, powerful forces within the Vatican, and among hierarchies throughout the world, are totally opposed to any concession towards the traditionalists. This is not hard to understand. The Vatican Congregations imposed or authorized changes in the traditional rites and national hierarchies did the same. The faithful have been told continually what an incalculable blessing these changes have been, despite the fact that by every objective criterion they have been a total and unmitigated pastoral fiasco. So many prelates at such high levels now feel that their personal prestige is bound up with the Tridentine Mass not being authorized that the Pope has felt unable to act against their wishes. I know that many of the faithful will say: "But that's ridiculous, he's the Pope and he can do what he likes!" This is not true. Men in an executive position almost always have to take careful account of those in the upper echelons of their organization. The President of the U. S. A., for example, would be unlikely to attempt to introduce legislation which he knew would be opposed by most of his cabinet. Pope Pius XII did not feel able to make the collegial consecration of the world to the Immaculate Heart of Mary, requested by Our Lady at Fatima, due to a lack of support by some national hierarchies.

A further point of which traditionalists must take account is that legislation on behalf of the Tridentine Mass may not rank very high on the Pope's list of priorities. He rules a Church which is disintegrating in many countries, and he probably feels that there are other matters which must be given priority. As traditional Catholics we tend to give the Tridentine Mass priority over everything, but it would be unrealistic to expect all Catholics to take the same attitude. It is not disloyal in any way for us to believe that the Pope has his priorities wrong, and that he should take a much firmer line against the anti-traditional prelates who surround him. The Pope seems to wish, above all, to keep the Church together, and to prevent a schism. He is therefore attempting to avoid open conflict with the bishops. We can argue, and, I believe, argue correctly, that he is paying far too high a price to maintain this facade of unity.

The 1980 Debacle

It is probable that the document authorizing the Tridentine Mass was to appear in 1980, possibly in conjunction with the Pope's letter on the Eucharist—Dominicae Cenae. What seems to have happened is that he was pressured into at least postponing promulgation of the document by prelates led by Cardinal Knox, then Prefect of the Congregation for the Sacraments and Divine Worship. It seems that he assured the Pope that he had been gravely misled concerning the extent of support for the Tridentine Mass, and that before promulgating the document he should consult the bishops of the world as to the desire for the Tridentine Mass in their dioceses. This was equivalent to asking the rulers of the Warsaw Pact countries whether the people living there were happy under communism. The Pope gave way, and allowed Cardinal Knox to conduct his notorious enquiry of June 1980. The result was as predictable as that of an election in Soviet Russia; the bishops of the world replied dutifully and almost unanimously that there was virtually no desire whatsoever for the Tridentine Mass anywhere by anyone. The results of the enquiry were made public and given widespread publicity in the Catholic press. This made the Pope's position more difficult than ever. He had acted in the Vatican II spirit of collegiality and consulted his brother bishops, and to have acted contrary to their collegial (if perjured) response would have seemed frightfully uncollegial, an affront to the spirit of the Council.

Not surprisingly, matters were left as they were for some time. Cardinal Knox was then replaced as Prefect of the Congregation for the Sacraments and Divine Worship. There is good reason to believe that this was a result of the Pope being made aware of the fact that the results of the Knox enquiry constituted a grotesque travesty of the truth. The Cardinal has since died, God rest his soul! Work on the New Code of Canon Law was coming to a close, and it would have been convenient to have the question of the Tridentine Mass regulated before its promulgation. Accordingly, a commission of nineteen cardinals was appointed to look into the legal status of the Tridentine Mass in February 1983. The conclusion of the Commission was that it had never been prohibited on a universal basis, that only local prohibitions existed, and that these should be removed. The Pope was willing to authorize a document giving legislative effect to these conclusions, but once again opposition from within the Sacred Congregation and from national hierarchies was sufficient to make the Pope think again. But the matter is by no means concluded, and efforts to ensure the eventual publication of a document authorizing the universal use of the Tridentine Mass are still continuing within the Vatican. Traditional Catholics should not let a day pass without praying for the success of these initiatives. Some may argue that if no legal prohibition exists, and the right deriving from customary usage prevails, such legislation is irrelevant. The answer is that there is a de facto prohibition, and even though it is unjust and illegal it represents the status quo. Many orthodox priests who would like to say the Tridentine Mass will not do so without the permission of their bishops, even if they are convinced that, strictly speaking, they have a legal right to use the traditional rite. The same is true for many of the faithful. There are thousands, perhaps hundreds of thousands, of Catholics in the U.S.A. who would dearly love to assist at Tridentine Masses, but will not do so from a false concept of obedience. I need scarcely add that we should attend Tridentine Masses only when they are offered by bona fide Catholic priests who pray for the Pope by name in the Canon of the Mass. A high proportion of the priests now offering the Tridentine Mass in the U.S.A., including at least some former priests of the Society of St. Pius X, refuse to pray for the Pope where the liturgy prescribes, and are thus formally schismatic. The same is true of the growing number of illicitly ordained bishops who have derived their consecration through Archbishop Ngo-Dinh-Thuc. Those who assist at the Masses of priests they know to be schismatic are not simply guilty of grave sin, but are playing into the hands of the bishops who wish the Tridentine Mass to be prohibited. Any Catholic who is in doubt as to whether a traditional priest is in communion with the Pope should ask him whether he prays for the Pope by name in the Canon of the Mass. Archbishop Lefebvre refused to tolerate the presence of such priests within the Society, and Father Schmidberger rightly follows the same policy (see Apologia, II, p. 378).

The Tridentine Mass and the New Code of Canon Law

It is evident that the New Code of Canon Law, in its finalized version at least, is intended to cater for an eventual authorization of the Tridentine Mass. One can go even further and claim that it accepts the legality of the traditional Mass. Canon 923 states that the faithful may participate in the Eucharistic Sacrifice and receive Holy Communion in any Catholic rite. Canon 1248 states that: "The obligation of assisting at Mass is satisfied wherever Mass is celebrated in a Catholic rite either on a holy day itself or on the evening of the previous day."

Before commenting on these canons I would like to mention a letter from a bishop which I have just been shown. It is a reply to a complaint concerning the presence of female acolytes in the sanctuary of a parish church, in contravention of Church law as expressed in the Instruction Inaestimabile Donum of 3 April 1980. The bishop replied that this Instruction prohibited females from serving the priest at Mass, but the girls in question were carrying the cross or a candle and were not actually serving. We are entitled, he claimed, to interpret the law strictly.

If we interpret Canon 1248 strictly the inescapable conclusions are astonishing and gratifying to traditional Catholics. The equivalent canon in the former Code, Canon 1249, contained a restriction about where the Mass obligation could be fulfilled—generally in a church, a public or semi-public oratory, in the open air, or in certain private cemetery chapels. There is no restriction whatsoever as to place in Canon 1248. In earlier drafts of this canon the word "celebrated" was qualified by the adverb "legitimately," which might have been interpreted as excluding the Tridentine Mass. The fact that this qualification was removed is of no little significance.

One possible objection to this interpretation of Canon 1248 would be that the Tridentine Mass is no longer a Catholic rite. Let us examine such an objection with complete objectivity. What is a Catholic rite? A Catholic rite is clearly one which is used within the Catholic Church without violating Church law. Given the existence of a customary right to celebrate the Tridentine Mass, then it is clearly a Catholic rite within the sense of this definition. But leaving aside the customary right, there is provision for the celebration of the Tridentine Mass within existing liturgical legislation, i.e., the Instruction of 13 June 1971 and the English Indult. Admittedly, these documents were meant to restrict its use, but they establish official recognition of the fact that it still exists as a legitimate Catholic rite.

An Expert Opinion

Canon Law is a very specialized discipline, and is best left to canonists. This is why in my pamphlet The Legal Status of the Tridentine Mass I have done no more than cite the opinions of competent canonists, as is the case in this article. On June 9, this year, the Latin Mass Society of England and Wales had its Annual General Meeting. The objective of this Society is the preservation of the Tridentine Mass, and it does this by arranging for a celebration of Tridentine Mass with episcopal approval in churches and cathedrals throughout the country. The meeting was preceded by a Solemn High Mass in Westminster Cathedral, sung by the Cathedral Choir. The meeting was addressed by Count Neri Capponi, an advocate of the Holy Roman Rota and the Apostolic Signatura, the highest court in the Church, and a professor of Canon Law at the University of Florence. I was able to put a question to Count Capponi. It went as follows:

Count Capponi's answer was:

"Yes."

Confirmation by a Cardinal

In a personal letter to Cardinal Oddi, Prefect of the Sacred Congregation for the Clergy in Rome, a Catholic lady who recently started attending the Latin Tridentine Mass wrote to him on January 11, 1984, regarding the "important issue concerning Archbishop Lefebvre's Society of St. Pius X" and pointedly asked His Eminence what is probably an unprecedented request:

This letter was signed by Mrs. Barbara Kennan. The Cardinal's reply was as follows:

An Inescapable Conclusion

An objective study of the legal status of the Tridentine Mass leaves us with only one possible conclusion: Every priest of the Roman Rite is entitled to celebrate it freely and the faithful are equally free to attend providing it is offered by a "bona fide" Catholic priest in communion with the Pope. This conclusion has been reinforced by the New Code of Canon Law, and there is good reason to hope that it will eventually be given explicit recognition by the Vatican. Let us pray for this intention.

1. Available from The Angelus Press, Box 1387, Dickinson, Texas 77539, at $2.00 postpaid.

2. The full text of the English Indult, the Notification of 14 June 1971, and the Apostolic Constitution Missale Romanum can be found in my book Pope Paul's New Mass, together with a large selection of other relevant documents.

3. See my article "True and False Obedience" in the October 1983 Angelus for a detailed examination of this question.